An agency’s past performance evaluation may consider whether the prime contractor and a proposed subcontractor have worked together previously–even if the solicitation is silent about such consideration.
In a recent bid protest decision, the GAO held that there was nothing improper about an agency’s determination that the awardee’s prior working history with its subcontractor decreased performance risk.
The GAO’s decision in VxL Enterprises, Inc., B-419467.2 (Mar. 8, 2021) involved a DHS solicitation for armed protective security officer services throughout Oklahoma. The solicitation contemplated the award of a single IDIQ contract against which the agency would make fixed-price task orders.
The solicitation established a best-value evaluation scheme, under which the DHS would consider past performance, management approach, and price. Past performance was the most important evaluation factor. Where an offeror intended to use a subcontractor, the solicitation allowed the submission of the subcontractor’s past performance references.
Triple Canopy, Inc. submitted a proposal. Triple Canopy submitted six past performance references–three for itself and three for its major subcontractor. In its evaluation the agency “noted that one past performance reference provided evidence that Triple Canopy and its proposed subcontractor had worked together in a manner similar to their proposed relationship for the performance of this requirement.” The agency believed that Triple Canopy’s experience working with its subcontractor would reduce performance risk. The agency assigned Triple Canopy a “Highly Acceptable” rating for the past performance factor and named Triple Canopy as the awardee.
An unsuccessful competitor, VxL Enterprises, LLC, filed a GAO bid protest challenging DHS’s decision. VxL alleged that the agency had made several errors in its evaluation of past performance. Among its allegations, VxL contended that it was improper for DHS to consider Triple Canopy’s history of working with its subcontractor. VxL stated that doing so amounted to an “unstated evaluation criterion,” because the solicitation was silent about any such consideration.
The GAO made short work of this argument. “An agency’s consideration of how a proposed team would function together is reasonable and logical, even where a solicitation does not expressly state a preference for contractor/subcontractor teams that have previously performed similar requirements,” the GAO wrote. It continued: “[w]e thus see nothing unreasonable in the agency’s finding that the prior working relationship of Triple Canopy and its proposed subcontractor would reduce performance risk in this procurement.”
The GAO denied VxL’s protest.
Past performance is an essential ingredient in many acquisitions, and the importance of past performance has been magnified by the recent FAR final rule curtailing lowest-price technically-acceptable procurements. As the VxL Enterprises case shows, where a prime contractor and subcontractor have previous experience working together, the agency has the discretion to consider that working relationship as part of its past performance evaluation–even if the solicitation doesn’t specifically mention it.
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